Overtime - frequently asked questions

Q. What is the Fair Labor Standards Act?
A. The Fair Labor Standards Act (The Act) establishes minimum wage, overtime pay, record keeping and child labor standards affecting full-time and part-time workers in the private sector and in federal, state and local governments. Covered non-exempt workers are entitled to a minimum wage of not less than $7.25 an hour. (VCU's entry rate for student workers is $7.25 an hour; however, hourly workers must be paid at least $8.25 an hour.) Overtime pay at a rate of not less than one and one-half times the regular rate of pay is required for non-exempt employees after 40 hours of work in a workweek.

Q. When are departments required to compensate at time and one-half overtime?
A. Departments must compensate FLSA non-exempt employees at one and one-half time overtime pay for all hours physically worked in excess of 40 hours of work in a workweek.

Q. Why should supervisors keep a close track of the work hours of their FLSA non-exempt employees?
A. FLSA regulations stipulate that you must pay non-exempt employees overtime pay even if the overtime was not pre-approved. It is important to closely watch an hourly employee's attendance.

Q. If employees volunteer to work overtime, do they have to be paid overtime?
A. Yes. A non-exempt employee who volunteers to work overtime must be paid for that time because he or she is being "suffered or permitted" (in the language of FLSA regulations) to work for the benefit of the university. To ensure the department has not "suffered or permitted" the overtime work, the supervisor must instruct the non-exempt employee not to work overtime without prior approval and, if necessary, discipline any non-exempt employee who works unauthorized overtime.

Q. Must the actual overtime pay be included in the paycheck for the pay period in which the overtime was physically worked?
A. “There is no requirement in the Act that overtime compensation be paid weekly. The general rule is that overtime compensation earned in a particular workweek must be paid on the regular pay day for the period in which such workweek ends. When the correct amount of overtime compensation cannot be determined until some time after the regular pay period, however, the requirements of the Act will be satisfied if the employer pays the excess overtime compensation as soon after the regular pay period as is practicable. Payment may not be delayed for a period longer than is reasonably necessary for the employer to compute and arrange for payment of the amount due and in no event may payment be delayed beyond the next payday after such computation can be made.” Title 29 - Labor, Code of Federal Regulations (CFR) §778.106 (Time of Payment).

Q. Does FLSA require notice to or consent from employees when scheduling overtime hours?
A. No. Department managers have the discretion to establish employee work schedules in accordance with business needs, provided the workers are compensated properly and wage and overtime requirements are observed. Reminder: If a non-exempt employee works past 40 hours in a workweek, you must pay the time physically worked past 40 hours at the overtime rate, even if you did not authorize it.

Q. Are non-exempt employees entitled to be paid for lunch time if they eat at their desks?
A. If a non-exempt employee chooses to eat at his or her desk and is completely relieved from duty, that time would not be considered working time, provided no work is performed. However, if a non-exempt employee is required to eat at his or her desk, the time would be considered working time. Non-exempt employees who voluntarily eat at their desks – but answer phones or perform other work – are "working" even though it is voluntary on their part; and they must be paid for the time physically worked.

Q. Must non-exempt employees who come in early to work be paid for that time?
A. Conditions under which the non-exempt employee comes into work early would determine whether that time would be considered working time. If a non-exempt employee comes in early and reads a book for leisure until the time the workday begins, this time would not be considered working time. However, if the non-exempt employee comes in early and begins working or performing preliminary tasks necessary to the job, the time would be considered working time.

Q. Does a department have to pay overtime to a non-exempt employee who took eight hours of sick leave on Monday but was then required to work eight hours on Saturday?
A. No. The non-exempt employee's total work time for the week was 40 hours, although he or she was paid for 48 hours. The FLSA requirement to pay premium rates for hours worked over 40 in a workweek applies only to time the non-exempt employee actually spends working. Sick leave (or any leave) time, even though the non-exempt employee is paid for the hours, is not considered hours physically worked. Other types of non-compensable time, such as holidays, annual leave, weather-related absences and jury duty, are treated the same as sick leave.

Q. Is additional extra compensation due for work performed on Saturdays, if the non-exempt employee has not already worked over 40 hours in a workweek?
A. No. FLSA regulations only require that non-exempt employees be paid at one and one-half times their regular rate of pay for all hours physically worked in excess of 40 in a workweek.

Q. As an FLSA-exempt employee, does my accrued compensatory leave expire?
A. Yes. Accrued compensatory leave expires 12 months from the date it is issued.